Hooks v. State, PCD-2002-980.

• Decision Date: 07 December 2005
• Docket Number: No. PCD-2002-980.,PCD-2002-980.
• Citation: 2005 OK CR 23,126 P.3d 636
• Parties: Victor Wayne HOOKS, Appellant v. STATE of Oklahoma, Appellee.
• Court: Oklahoma Supreme Court

126 P.3d 636

2005 OK CR 23

Victor Wayne HOOKS, Appellant v.STATE of Oklahoma, Appellee.

No. PCD-2002-980.

Court of Criminal Appeals of Oklahoma.

December 7, 2005.

COPYRIGHT MATERIAL OMITTED

OPINION DENYING POST-CONVICTION RELIEF

CHAPEL, Presiding Judge.

¶ 1Victor Wayne Hooks was convicted of First Degree Murder and manslaughter.He was sentenced to death for the murder and to 500 years imprisonment for manslaughter.This Court affirmed the judgments and sentences.¹This Court denied Hooks's Application for Post-Conviction relief,² and the Tenth Circuit denied in part his federal habeas petition.³On December 31, 2002, Hooks filed a Second Application for Post-Conviction Relief in a Death Penalty Case, requesting an evidentiary hearing on the issue of mental retardation.We granted that motion on January 15, 2003, and remanded the case to the District Court of Oklahoma County for an evidentiary hearing.We subsequently remanded the case for a jury determination on the issue of mental retardation.⁴That jury hearing was conducted in June, 2004, before the Honorable Jerry D. Bass, and concluded with a jury determination that Hooks is not mentally retarded.The District Court filed its Findings of Fact and Conclusions of Law with this Court on July 23, 2004.Hooks and the State each filed supplemental briefs in response to those findings and conclusions; Hooks raises seven propositions of error in his Supplemental Brief.⁵

¶ 2The Court remanded this case for a jury determination followed by findings of fact and conclusions of law from the trial court.While the trial court's findings and conclusions assist this Court in its decision, the jury is the finder of fact in this proceeding.Thus, we will review the alleged errors occurring during the proceeding on remand in the same manner as errors raised on direct appeal from a trial on the merits.This Court reviews the jury's factual determination in the light most favorable to the State, to determine whether any rational trier of fact could have found that the defendant failed to meet his burden of proving mental retardation by a preponderance of the evidence.⁶After a complete review of the record, transcripts, exhibits and pleadings filed in this case, we find that no relief is required.The Court commends the trial court and counsel.This hearing was carefully conducted to protect Hooks's rights and tightly focused on the narrow issue of mental retardation.⁷Jurors were told Hooks had been found guilty of a crime, but neither the crime itself nor the sentence imposed was mentioned.Throughout the trial no reference was made to capital punishment, the death penalty, or death row.No facts of the crime in this case were introduced, and evidence of other crimes was confined to that which was relevant to the issue of mental retardation.Neither victim impact evidence, nor evidence which had been used in aggravation of the murders for which Hooks was convicted, was introduced.

¶ 3 In Proposition I Hooks claims the evidence was sufficient to prove he is mentally retarded.Hooks has the burden of proof in these proceedings.In order to prove he is mentally retarded, Hooks must first demonstrate to the court that he had an IQ test under 70.After meeting this threshold requirement, Hooks must show, by a preponderance of the evidence, that he meets the three prongs of the Murphy test: sub-average intellectual ability, manifestation before age 18, and significant limitations in adaptive functioning in at least two of nine skill areas.⁸Hooks has not met this burden.

¶ 4 In addition to being a threshold requirement, evidence of IQ testing may be admitted to the jury to prove whether a defendant functions at a significantly sub-average intellectual level.Hooks presented evidence of IQ test results from first grade through the months immediately preceding the mental retardation proceeding.Those test scores ranged from 80 to 53.The first test, given when Hooks was in the first grade, had a full scale IQ of 80.⁹Hooks was next tested in fifth grade and received a score of 70.The psychometrist's notes state that Hooks's attention and effort varied during the test, and he was generally indifferent during its administration.She did recommend him for educable mentally handicapped (special education) classes.

¶ 5 In 1978, when he was sixteen, Hooks was injured when a tractor-trailer struck his car, and his father died in an unrelated accident six months later.Hooks's mother applied for Social Security disability on his behalf as a result of the accident, and also sued the trucking company, claiming Hooks's mental ability had been damaged in the accident.In 1978, after the accident, Dr. Tuoti tested Hooks with an IQ of 61, but suggested that Hooks did not cooperate during testing and his intellectual level might have been higher.In 1979, Dr. Phillips tested Hooks in connection with the lawsuit and obtained an IQ of 57; he noted that Hooks was moderately cooperative but gave up quickly on difficult tasks.Dr. John Call examined Hooks in 1980, in connection with the Social Security Claim.He determined that Hooks was mentally retarded and had catatonic schizophrenia, but did not produce an IQ score because he was unable to independently test Hooks.¹⁰During the mental retardation proceedings, both Hooks's and the State's expert witnesses agreed that these examinations might not reflect Hooks's true intellectual ability, either because he did not cooperate with testing or due to the trauma of the accident and the loss of his father.Testimony also showed that in 1988, Dr. Phillip Murphy tested Hooks with an IQ of 80.

¶ 6 Hooks has had three IQ tests since his trial and direct appeal in this capital case.In 1994, Hooks was evaluated by Dr. Gelbort who gave Hooks a neuropsychological evaluation which included an IQ score of 72.Dr. Gelbort was not specifically asked to examine Hooks for mental retardation and did not administer any adaptive functioning tests.While Dr. Gelbort did not, at that time, diagnose Hooks as mentally retarded, during testimony at the mental retardation proceeding he stated that, taking into account his testing and subsequent tests, he would now make that diagnosis.In 2002 Dr. Cowardin gave Hooks adaptive functioning tests and an IQ test with a score of 76, and diagnosed him with mild mental retardation.Hooks cooperated with both Dr. Gelbort and Dr. Cowardin during the testing process.In 2004 Dr. Hall evaluated Hooks and obtained an IQ of 53.She noted Hooks was not cooperative.The experts agreed this score probably did not reflect Hooks's intellectual ability.

¶ 7 The experts agreed this range of scores put Hooks in a "gray area".The tests of 70 and below all reflected some degree of lack of cooperation on Hooks's part, from variable attention span to refusal to respond.Two of them were obtained after Hooks suffered the trauma of an accident and his father's death, which could have caused him to test lower than his actual intellectual level.The expert witnesses agreed that the most reliable scores were those obtained by Dr. Gelbort and Dr. Cowardin, with results of 72 and 76.Neither of these scores meets the "seventy or below" requirement in Murphy,¹¹ although Dr. Gelbort's results are within that range using the standard error of measurement (a five-point range on either side).Given the other testimony, it was not unreasonable for jurors to determine that the most reliable IQ evidence offered did not fall within the first prong of the Murphy definition, functioning at a significantly sub-average intellectual level.A rational trier of fact could have found that Hooks failed to meet this burden by a preponderance of the evidence.

¶ 8 Hooks met the second Murphy requirement.Whether he was considered mentally retarded or "slow", everyone agreed this condition had manifested itself before he turned eighteen.In fact, Hooks had been diagnosed with mild mental retardation during a stay at Eastern State Hospital, and was placed in educable mentally handicapped classes by fifth grade.However, standing alone, this is not enough to conclude that Hooks is mentally retarded for capital sentencing purposes.

¶ 9 In large part Hooks relied on the same evidence to prove both the Murphy requirements of significantly subaverage intellectual level and significant deficits in adaptive functioning.¹²Insofar as Hooks relied on his IQ tests to show subaverage intellectual functioning, the discussion above shows those results were inconclusive.Dr. Cowardin found Hooks had significant limitations in adaptive functioning in communication, functional academics, self-direction, and health and safety.The State presented evidence specifically countering these findings.Taken as a whole, the evidence showed Hooks had some difficulties communicating but could understand others, make himself understood, express his wishes, and understand those of other people.The category of functional academics includes both school progress and the ability to use acquired knowledge in life situations.While Hooks had very poor grades and was in some special education classes, he reads at least at a fourth grade level and reads for pleasure in prison, can shop for clothing, food, and leisure goods, has pawned items for cash, bought cars, and leased apartments, drives, and can follow road signs and instructions while driving.Dr. Cowardin found Hooks has some deficiency in self-direction because, according to her information, he has a history of unproductive use of his time.Other evidence showed that, before being incarcerated, he had worked as a laborer, accepted the responsibility to provide food and diapers for his children, and employed some women as prostitutes, requiring them to give him their earnings and a portion of their food stamps.Dr. Cowardin found deficits in health and safety because Hooks gave only one answer to each test question when two were called...